Opinion
02-cv-1064
09-14-2020
ROBERT MICKENS, Petitioner, v. MICHAEL CLARK, SUPERINTENDENT, and THE ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA, Respondents.
cc: Robert Mickens CT-7015 SCI Albion 10745 Route 18 Albion, PA 16475-0002 (via U.S. First Class Mail) Ronald M. Wabby , Jr. Office of the District Attorney (via ECF electronic notification)
ELECTRONICALLY FILED
MEMORANDUM OPINION DENYING " '(INDEPENDENT ACTION)' PURSUANT TO RULE 60(b) FEDERAL R.CIV.P. 60(b)(6)(2)(d)" (Doc. No. 20)
Before the Court is Petitioner Robert Mickens's " '(Independent Action)' Pursuant to Rule 60(b) Federal R.Civ.P. 60(b)(6)(2)(d)." (Doc. No. 20). Because Mickens is proceeding pro se, the Court will construe Mickens's filing as a motion for reconsideration under Fed.R.Civ.P. 60(b) or, in the alternative, a motion for independent action for relief from judgment pursuant to Fed.R.Civ.P. 60(d). For the reasons that follow, the motion will be denied.
I. Relevant Background
Petitioner, Robert Mickens (Mickens), is not a stranger to this Court. He filed his first petition for writ of habeas corpus in 2002, in which he challenged his 1995 conviction of first degree murder and sentence of life imprisonment. Since that time, he has filed two additional habeas petitions in this Court, filed at Case Nos. 08-cv-0950 and 12-cv-1039, both of which were dismissed on the grounds that this Court lacked jurisdiction as both were unauthorized second or successive habeas petitions. And in February of 2017, he filed a Rule 60(b) motion in Case No. 12-cv-1039, which the Court dismissed as an unauthorized second or successive petition as he was rehashing claims that he previously raised in his 2008 and 2012 petitions. See Case No. 12-cv-1039, Doc. No. 18. On September 1, 2017, the Court of Appeals for the Third Circuit denied Mickens's request for a certificate of appealability. Id., at Doc. No. 22.
On or about January 16, 2019, Mickens filed his fourth PCRA petition challenging his 1995 conviction. On March 3, 2020, the Pennsylvania Supreme Court denied Mickens's petition for allowance of appeal. (Doc. No. 20-1 at 5). Having no success in state court, Mickens has returned to this Court again attempting to collaterally attack his 1995 state court convictions and judgment of sentence.
The underlying factual and procedural history of Mickens's habeas cases are set forth in opinions filed in Case Nos. 02-1064; 08-cv-950; and 12-cv-1039, copies of which are attached as Exhibit A and incorporated herein by reference. Additionally, on April 28, 2017, the Court denied Mickens's "Fed.R.Civ.P. 60(b)(6)(2)(3)(d) Motion from a Judgement (sic) or Order," filed at Civil No. 2:12-cv-1039, a copy of which is attached as Exhibit B and incorporated herein by reference. Therefore, the Court need not restate the relevant background again in this Opinion.
The Report and Recommendation and Order adopting the Report and Recommendation filed in Case No. 02-cv-1064 are appended to the Report and Recommendation filed in Case No. 08-cv-0950.
II. Petitioner's Pending Motion
Mickens has now filed yet another motion challenging the judgment of sentence imposed upon him by the Court of Common Pleas of Allegheny County on May 15, 1995. The instant motion, filed by Mickens with this Court on August 27, 2020, is fashioned as an " 'Independent Action' Pursuant to Rule 60(b) Federal R.Civ.P.60(b)(6)(2)(d)." He has altered his previous arguments a bit by now arguing that the judge who presided over his criminal trial and PCRA proceedings, Common Pleas Judge Donna Jo McDaniel, and all the attorneys appointed by Judge McDaniel to represent Mickens acted together to "intentionally derail[] petitioner's appeals as they eviscerated the petitioner's rights," Mot. at 41. Mickens contends that this Court "rendered misapplication of the law due to the blatant government interference by former jurist Common Pleas Judge Donna Jo McDaniel in the prejudicial misapplication of the Post-Conviction Relief Statutes as she forced the petitioner out of a direct appeal utilizing the PCRA statute." Id. at 5.
In the caption of his motion, Mickens lists all three of his habeas cases: 02-cv-1064; 08-cv-0950, and 12-cv-1039. The Clerk of Court filed the motion at each of the three cases. The three cases were thereafter consolidated with Case No. 02-cv-1064 being designated the lead case.
Mickens claims, inter alia, that Judge Donna Jo McDaniel dismissed his PCRA petition in retaliation for him lodging complaints against her for fraud upon the court with The Disciplinary Board of The Supreme Court of Pennsylvania, the Judicial Conduct Board, and the Office of the District of District Attorney, Allegheny County. Mot. at 2; see also Doc. No. 20-1 at 74.
Because this is a federal habeas action, the Court must initially determine whether Mickens's motion is actually an unauthorized second or successive petition or whether it is a true Rule 60(b) motion. In the habeas context, a motion labeled as a Rule 60(b) motion should be treated as a second or successive petition if it "seeks to add a new ground for relief" from the underlying conviction or "attacks the federal court's previous resolution of a claim on the merits." Gonzalez v. Crosby, 545 U.S. 524, 532 (2005). Conversely, said motion properly is treated as a Rule 60(b) motion when it "attacks, not the substance of a claim on the merits, but some defect in the integrity of the federal habeas proceedings." Id.; see Pridgen v. Shannon, 380 F.3d 721, 727 (3d Cir. 2004) ("[I]n those instances in which the factual predicate of a petitioner's Rule 60(b) motion attacks the manner in which the earlier habeas judgment was procured and not the underlying conviction, the Rule 60(b) motion may be adjudicated on the merits."). Mickens may not circumvent the rules of AEDPA by couching an unauthorized successive habeas petition as a motion under Rule 60(b).
III. Discussion
A. Federal Rule of Civil Procedure 60(b)
The Court finds that the claims raised by Mickens in the instant motion are classic successive petition claims because the factual predicate of his claims attacks his underlying state court conviction by raising a new ground for relief. Gonzalez v. Crosby, 545 U.S. at 530-31; Pridgen, 380 F.3d at 727. Accordingly, the Court holds that Mickens's motion should properly be treated as a second or successive § 2254 petition and not as a Rule 60(b) motion. As such, this Court lacks jurisdiction to consider it in the absence of prior authorization by the Court of Appeals for the Third Circuit.
This Opinion should not be read as a comment upon the merits of any claim that Mickens could raise in a habeas petition challenging his May 15, 1995, judgment of sentence, or whether such a petition would be subject to dismissal on other grounds.
Alternatively, even if this Court were to construe Mickens's motion as a "true" Rule 60(b) motion, the motion would be denied as none of Mickens's arguments warrant relief under Rule 60(b).
B. Federal Rule of Civil Procedure 60(d)
To the extent Mickens's motion raises an independent action under Rule 60(d) and not a motion under Rule 60(b), he fares no better. While the Supreme Court in Gonzalez stated that fraud on the court "is one example of . . . a defect" in federal habeas proceedings, it specifically referred to "fraud on the federal habeas court." 545 U.S. at 532, n.5 (emphasis added).
The Court of Appeals for the Third Circuit has stated, in describing a fraud on the court action: "Initially, we must be clear that we are not here reviewing a Rule 60(b) motion . . . . It follows that an independent action alleging fraud upon the court is completely distinct from a motion under Rule 60(b)." Herring v. United States, 424 F.3d 384 (3d Cir. 2005) (internal citations omitted). --------
To prevail on a claim of fraud on the court, the movant must demonstrate by clear and convincing evidence the following four elements: (1) an intentional fraud; (2) by an officer of the court; (3) which is directed at the court itself; and (4) that in fact deceives the court. Herring v. United States, 424 F.3d 384, 390 (3d Cir. 2005). The Court finds that Mickens has presented no evidence that any fraud has been perpetuated against this Court. The alleged fraudulent conduct of which Mickens complains would have been perpetrated against the state court, not the federal court. Further, even if the Court views Mickens's argument to be that the alleged fraudulent conduct of the state court judge and Mickens's court-appointed attorneys during his state court proceedings tainted this Court's assessment of his federal habeas petition, such argument is without merit because fraud on the court requires proof that the fraudulent conduct was willfully directed to the court that was deceived. Mickens's Rule 60(d) motion is simply an attack on the state court's judgment of conviction and should properly be considered a second or successive habeas petition. The motion for an independent action for relief from judgment pursuant to Fed.R.Civ.P. 60(d) will be denied.
V. Conclusion
For the foregoing reasons, Mickens's pending motion will be dismissed without prejudice. Reasonable jurists would all agree that Mickens has not even attempted to show that he obtained leave from the United States Court of Appeals for the Third Circuit to file the instant second-or- successive habeas corpus petition. Reasonable jurists would also agree that this Court lacks jurisdiction and authority to consider the successive habeas petition without proof of such leave. Because jurists of reason would not find debatable the Court's disposition of Mickens's motion - whether construed in whole or in part as a second or second successive habeas petition or a true Rule 60(b) motion - a certificate of appealability will be denied. 28 U.S.C. § 2253; Slack v. McDaniel, 529 U.S. 473, 484 (2000).
An appropriate Order will issue.
s/Arthur J. Schwab
Arthur J. Schwab
United States District Judge Dated: September 14, 2020 cc: Robert Mickens
CT-7015
SCI Albion
10745 Route 18
Albion, PA 16475-0002
(via U.S. First Class Mail)
Ronald M. Wabby , Jr.
Office of the District Attorney
(via ECF electronic notification)
EXHIBIT A
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EXHIBIT B
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